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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Captain Dundass v Lieutenant-General Holburn [1678] 2 Brn 223 (11 January 1678) URL: http://www.bailii.org/scot/cases/ScotCS/1678/Brn020223-0488.html Cite as: [1678] 2 Brn 223 |
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[1678] 2 Brn 223
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.
Date: Captain Dundass
v.
Lieutenant-General Holburn
11 January 1678 Click here to view a pdf copy of this documet : PDF Copy
Captain Dundass pursues Lieutenant-General Holburn for the levy-money of a company levied in anno 1648, whereof Holburn was colonel: and each company had a locality; wherein Dundass his locality fell in Selkirk; with whom he had agreed for £40 for each soldier; and that Holburn had uplifted the
levy money, and the free profit of the company: which was sustained relevant. But the question arose as to the manner of probation: The pursuer offered to prove it by the defender's receipts and subscribed accounts with the commissaries or quarter-masters. The defender alleged, That, by the known custom among soldiers, the staff-officers count for the whole regiment; whereof every inferior officer receives his share without a discharge; and, therefore, it is only probable by his oath, that he did uplift and retain the pursuer's share; otherwise, the counts with commissaries, or quarter-masters, or collectors of shires, might make all considerable officers liable for the pay of their regiments; which were of dangerous consequence now, after thirty years.
The Lords found the foresaid receipts not to infer a necessity to produce discharges; but that, in regard of the custom, soldiers' payment was presumed, unless it had been questioned de recenti; and that it was now only probable, by the defender's oath, that he received the levy money and repaid it not.
Vol. II, Page 590.
The electronic version of the text was provided by the Scottish Council of Law Reporting
